Risk and Another v Msimang NO and Others (50027/2014) [2016] ZAGPPHC 1230 (4 November 2016)

Risk and Another v Msimang NO and Others (50027/2014) [2016] ZAGPPHC 1230 (4 November 2016)

The court found that the application for exemption from exhausting internal remedies was incompetent, as the issue had already been decided by Judge Baqwa and was res judicata. The applicants failed to appeal that judgment and did not provide the Ombud with the requested information during the investigation. The Chair of the appeal board's refusal to allow further evidence was based on irrelevant considerations, specifically the applicant's perception of bias, which was not a rational basis for the decision. The Chair failed to address whether good cause was shown for allowing further evidence, as required by section 268(12) of the FSB Act. The failure to provide adequate reasons for the...

Citation
[2016] ZAGPPHC 1230
Parties
Applicant: Deeb Raymond Risk; Applicant: D Risk Insurance Consultants CC; Respondent: Mr HMS Msimang N.O.; Respondent: The Ombud for Financial Service Providers; Respondent: Janet Anne Bujok; Respondent: Lionel Walter Oldacre; Respondent: Catherine Marie Oldacre
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 November 2016
Case Number
50027/2014
Procedural Posture
Review Application / High Court Judgment on Review of Administrative Action
Outcome
Application to be exempted from exhausting internal remedies dismissed; decision of the Chair of the appeal board set aside and remitted for reconsideration; no order as to costs.
Judges
NP Mngqibisa-Thusi
Legal Topics
Exhaustion of Internal Remedies, Promotion of Administrative Justice Act, Financial Services Regulation, Review of Administrative Action, Procedural Fairness, Ombud Determinations
Administrative Law Banking and Finance Civil Procedure Exhaustion of Internal Remedies Promotion of Administrative Justice Act Financial Services Regulation Review of Administrative Action Procedural Fairness +1 more

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Parties

Deeb Raymond Risk

Applicant

D Risk Insurance Consultants CC

Applicant

Mr HMS Msimang N.O.

Respondent

The Ombud for Financial Service Providers

Respondent

Janet Anne Bujok

Respondent

Lionel Walter Oldacre

Respondent

Catherine Marie Oldacre

Respondent

Procedural Posture

Review Application / High Court Judgment on Review of Administrative Action

Legal Issues

  1. 1 Whether the applicants should be exempted from exhausting internal remedies before seeking judicial review of the Ombud's decision.
  2. 2 Whether the Chair of the appeal board's refusal to allow further evidence was rational and lawful.
  3. 3 Whether the Ombud's determination and subsequent appeal process complied with the requirements of procedural fairness under PAJA.

Ratio Decidendi

The court found that the application for exemption from exhausting internal remedies was incompetent, as the issue had already been decided by Judge Baqwa and was res judicata. The applicants failed to appeal that judgment and did not provide the Ombud with the requested information during the investigation. The Chair of the appeal board's refusal to allow further evidence was based on irrelevant considerations, specifically the applicant's perception of bias, which was not a rational basis for the decision. The Chair failed to address whether good cause was shown for allowing further evidence, as required by section 268(12) of the FSB Act. The failure to provide adequate reasons for the...

Court Disposition

Application to be exempted from exhausting internal remedies dismissed; decision of the Chair of the appeal board set aside and remitted for reconsideration; no order as to costs.

Orders

  • The application to be exempted from exhausting internal remedies is dismissed.
  • The decision by the first respondent dated 17 June 2014 is reviewed and set aside.